WASHINGTON
WHEN the Supreme Court last ruled on affirmative action, almost a decade ago, Justice Anthony M. Kennedy issued a 13-page dissent that may now provide the best guide to the future of affirmative action.
Justice Kennedy charted a path between the liberal-leaning ruling that essentially upheld race-based admissions programs and the dissents from his more conservative colleagues, who called for the programs’ abolition. He agreed that universities could take race into account in order to create diverse classes. But he argued that race should be “one modest factor among many others” — and that universities were instead treating it as “a predominant factor,” which was unconstitutional.
In the 10 years since that case, Grutter v. Bollinger, the court has moved to the right. Justice Samuel A. Alito Jr., acritic of affirmative action since the 1980s, has replaced Justice Sandra Day O’Connor, who wrote the majority opinion upholding the practice in 2003. That switch leaves Justice Kennedy as the swing vote in the current case involving the University of Texas, on which the court could rule anytime between next week and late June.
“I think Kennedy is likely to do something very similar to what he did in Grutter,” Sheryll Cashin, a law professor at Georgetown University and former clerk to Justice Thurgood Marshall, told me.
With most cases before the current court — especially ones involving race — liberals would be contemplating the prospect of another 5-to-4 decision with dread. The affirmative action case, however, comes with a wrinkle.
Most prominent liberals, including civil rights leaders and the Obama administration’s lawyers, have indeed urged the court to uphold the current version of affirmative action. Yet a rump group of left-leaning legal scholars and education experts share at least some of Justice Kennedy’s concerns. And they find themselves in the unusual position of seeing upsides in another potential liberal defeat in Chief Justice John G. Roberts Jr.’s court.
When elite colleges describe their admissions process, it sounds like one that follows Justice Kennedy’s standard, with race as just one factor. In an amicus brief supporting the University of Texas, the eight Ivy League universities and six others said they sought a student body that was “diverse in many ways.”
In fact, race plays a role unlike almost any other factor. An African-American student with a similar application to a white student received the equivalent of a 310-point lift in SAT scores, on a 1,600-point scale, according to a study of elite colleges by Thomas J. Espenshade, a Princeton sociologist. For Latino students, the margin was 130 points.
Recruited athletes and so-called legacy applicants also receive huge bonuses. But students who bring the other diversity that colleges claim to value — socioeconomic status, geography and perspective, to name three cited in the brief — receive no such advantage.
One study of 1990s data found that, all else equal, poorer students received no lift relative to affluent ones. Mr. Espenshade found that low-income minorities were somewhat more likely to gain admission than similar higher-income minorities but that lower-income whites received no advantage. In effect, poor and middle-income students are rejected, while others with the same scores and grades — legacies, athletes and minorities, often from privileged backgrounds — are admitted.
As a result, elite public and private colleges remain dominated by affluent students. Some colleges probably have more students from the top 2 percent of the income distribution than the bottom 50 percent.
The current system has left colleges in legal jeopardy because of both the conservative bent of today’s judiciary and the high legal burden that the law places on any race-based program. In a 1978 case, the justices called for “strict scrutiny” of such programs. In his 2003 dissent, Justice Kennedy argued that colleges did not meet this standard. Instead, he wrote, race often determined admissions decisions.
As he said to the University of Texas’s lawyer during arguments in October, “What you’re saying is that what counts is race above all.”
The Kennedy dissent leaves the door open to affirmative action, but only a form that makes the explicit consideration of race a last resort. Other factors would have to come first. As it happens, there are several officially race-neutral factors that would raise no constitutional risk — and help many minority applicants.
The most obvious is income. But others may be more important. If colleges gave students credit for coming from a low-income ZIP code, black and Latino students would benefit enormously, as they would from the consideration of wealth and family status. Only 27 percent of white students grow up in a single-parent family, compared with 60 percent of black children and 34 percent of Latino children.
One possible outcome is that the court will force colleges to show they have tried these forms of affirmative action before they turn to race. Another is a decision holding that racial preferences can be no larger — in terms of SAT points, for instance — than class preferences, says Stuart Taylor Jr., a co-author of a book critical of affirmative action.
The liberal critics of affirmative action believe that many of these approaches would be better than the current one. Racial discrimination obviously continues to exist. But the disadvantages of class, by most measures, are larger today. A class-based system would be more expensive, forcing colleges to devote some money now spent on buildings and other items to financial aid instead, but it would also arguably be more meritocratic.
Predicting the outcome of any Supreme Court case is a dangerous game, of course. Richard Primus of the University of Michigan puts only a two-in-three chance on a ruling along the lines of the 2003 Kennedy dissent. The court could also issue a ruling with little effect beyond Texas.
Perhaps the biggest reason to expect something more is simply that the justices took the case, Fisher v. University of Texas, in the first place.
“I think that after Fisher, there is going to be a lot of experimentation,” Ms. Cashin predicted. “Fisher’s going to create a crisis for people who care about diversity. The good thing about that is it will force some re-evaluation of what’s going on.”